The Supreme Court did it: The three Trump justices plus Justices Clarence Thomas and Samuel Alito didn’t just silently allow the extremist Texas anti-abortion law—a law that is “a breathtaking act of defiance—of the Constitution, of this Court’s precedents, and of the rights of women seeking abortions throughout Texas,” in Justice Sonia Sotomayor’s words—to go into effect. A day late, the conservative justices came out and explicitly said that’s what they were doing, allowing this blatantly unconstitutional law to go into effect with a single unsigned paragraph of explanation. Liberal Justices Sotomayor, Elena Kagan, and Stephen Breyer were joined by Chief Justice John Roberts in dissenting.
The majority of justices claimed that they weren’t ruling on the constitutionality of the law—they could still block it at a later date. It’s just that for now, they want us to believe, they can’t quickly assess the issues in this novel new legal instrument, which allows anyone to enforce the law against people involved in abortions, so the court had better let it go into effect. Literally because of one of the law’s most abusive provisions, the majority said, the law couldn’t be put on hold. But the dissenting justices called bullshit on that.
“The Court’s order is stunning,” Sotomayor wrote. “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand. Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents. Today, the Court belatedly explains that it declined to grant relief because of procedural complexities of the State’s own invention.”
Kagan made the same point about the majority’s dishonest reasoning, writing, “The Court thus rewards Texas’s scheme to insulate its law from judicial review by deputizing private parties to carry out unconstitutional restrictions on the State’s behalf.”
Kagan went on to take aim at the majority’s abusive use of shadow dockets, writing, “The majority’s decision is emblematic of too much of this Court’s shadow-docket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend.” But when there are five votes on the court for any far-right priority, they don’t have to defend themselves. They can just do it. At least as long as Democrats won’t take real action to fix things.
And about Roberts: As Jessica Mason Pieklo wrote after this came out, ”It doesn’t matter if Roberts is an institutionalist if the other conservatives on the bench are not. And these other conservatives are most definitely not institutionalists. Justices Samuel Alito, Clarence Thomas, and the three Trump justices—Brett Kavanaugh, Amy Coney Barrett, and Neil Gorsuch—run the show now.”
And let’s be clear, this is just the beginning.
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